August 17, 2007

The government’s chief evidence was a faded application form that prosecutors said Mr. Padilla, 36, filled out to attend a Qaeda training camp in Afghanistan in 2000.

Faded. Just an old, faded piece of paper. Injustice -- the idea is planted in the reader's head. And yet what is the evidentiary significance the fadedness of the paper? Nothing, without more. For example, if the prosecution had relied on the fadedness to explain a lack of fingerprints, it would affect the weight we'd give to the paper. But in fact, there were 6 fingerprints!

In paragraph 4, we're told that the jurors, leaving the courthouse, would not speak to the press, but one woman, contacted by phone, said -- in the words of the NYT -- "that she had all but made up her mind before deliberations began." The readers' suspicions of injustice are stoked. Yet really, the juror has admitted nothing wrong here. Why the paraphrase? What did she say?

Do people even click to see what's on page 2?

James Cohen, a law professor at Fordham University, said the fact that the Qaeda training camp form had six of Mr. Padilla’s fingerprints was “overwhelmingly powerful” and had very likely swayed the jurors.

Swayed? How about convinced? Do the citizens who served on the jury in a 3-month trial deserve the dispargement implicit in the word "swayed"? (Dictionary definition of sway: "To divert; deflect... To exert influence on or control over.") And, again, why the paraphrase? I take it Professor Cohen did not say "swayed."

I was also struck by this: "After being held in isolation in a military brig in South Carolina for three and a half years, Mr. Padilla (pronounced puh-DEE-yuh) was transferred to civilian custody here last year...." Three questions: 1. Why after all these years are we still being told how to pronounce this man's name? 2. Didn't the defense lawyers inform us that his name was actually pronounced puh-DILL-uh? 3. Are we now being informed it's puh-DEE-yuh because the lawyers decided puh-DEE-yuh will do a better job of exerting influence or control over us?

129 comments:

Would you rather have a NY Post Version: "Padilla? Palleeese...6 Prints and NOT of St. Francis"

I don't disagree with your NYT observations. I merely observe that in what is or was a pretty open and shut criminal case got all tangled in part of the Patriot Act/Prez Powers that a carry with it a lot of well founded suspicion. Why do that when this seems like a pretty sure thing way of handling it...by traditional law enforcement methods.

Just a thought....by the way was on the other end of Flatbush near Grand Army last night for that sunset. High floor. Magnificent.

I take the easy way out and simply avoid reading the NYT and AP reports. I'll let others sift through their BS for me.

Hell, I don't even trust movie reviews anymore not to include some political stance.

What do I read instead? Books and blogs. The paper I can do without. I've learned that the latest national tragedy (current one: miners) can be gleaned on a quick surf through the news channels, done while holding my breath.

Your parsing of this column was dead on, and more learned than I could produce. It explains why I cannot abide to read their output anymore. Their's simply no need to read Pravda if you don't have to.

Having spent 3.5 years subjecting Padilla to extreme sensory deprivation and other forms of torture,

Which is pretty much what any parent goes through during those formative first years of raising a baby to toddler status. Lack of sleep? Sensory deprivation? Anyone who has had a kid with colic knows what I’m talking about.

I can't imagine what he could have been insecure about performing in front of people who find David Hasselhoff entertaining.

The NYT is (rightfully) still upset about the way in which his case was originally handled by the Justice Dept. It doesn't bother me that the report is biased because the gov should never have had the chance to mistreat him (a US Citizen) for the past 5 years. They should have given him a trial from the beginning and maybe then the NYT (and I) wouldn't think the whole trial today is an exercise in futility. His constitutional rights were violated and, like it or not, that makes him a sympathetic character.

Fisking the NY Times is great fun. It still amazes me how these liberal newspapers are so anti-american and pro terrorist in their reporting.

Padilla did not deserve a civil trial. By participating in the Al Qaeda camp, he was taking up arms against America - that means taking up arms against you, your kids, your grandparents, your local school. Upon his attempted entry back into the U.S. he should have been arrested as a spy, tried by a military tribunal and imprisoned or put to death.

An American citizen is held for three years without access to a lawyer and without being able to communicate with his family, is subject to cruel and unusual punishment including torture to the point of possible permanent mental damage and the only thing that apparently bothers you is the use of an adjective, a verb and a pronunciation guide in a New York Times article. Although you are a constitutional law professor, you seem blithely untroubled by the idea that the Bush Administration thought it could get away with stripping an American citizen's constitutional rights and instead seem to believe your talents are better suited to line editing the New York Times. Perhaps you ought to apply for a copy editing position for the New York Times instead of wasting your time teaching young law students that the U.S. Constitution is just a "faded" piece of paper.

The NYT is (rightfully) still upset about the way in which his case was originally handled...

And therein lies the problem. The NYT should not be "upset," or any other emotion for that matter. It's not a person, it's a paper. If unbiased reporting is impossible (I don't think it is - there are many fine reporters who confirm this belief daily), the NYT should at least quit pretending its content is anything but editorial.

An American citizen is held for three years without access to a lawyer and without being able to communicate with his family, is subject to cruel and unusual punishment including torture to the point of possible permanent mental damage and the only thing that apparently bothers you...

You don't get it do you. This guy was part of the enemy military who violated all the laws of war. He lost his American citizenship the moment he stepped into the Terrorist training camp.

Steve:An American citizen is held for three years without access to a lawyer and without being able to communicate with his family, is subject to cruel and unusual punishment including torture to the point of possible permanent mental damage...Do you have any actual evidence that Padilla was tortured or are you making this up?

Civil rights are for civil people. Convicted terrorists like Padilla who commit treason by joining the fanatic army of our enemies and come back to our country to murder and main their fellow citizens... why do you feel the strong need to defend and enable such a man?

Steve,In WW2 and any other prior conflict, Padilla would have been executed shortly after arrest. He also knows that if he had been found a traitor to Al Qaeda, he'd have been quickly executed as well.

Padilla had no qualms about killing Americans, and although he doesn't believe in our form of government he does know that we believe it and is happy to manipulate its guarantees as it suits his needs.

Steve's reaction only provides further evidence to me that we should not take any terrorists prisoner, but kill them all on the spot. Their imprisonment is cause for too much sympathy, while their deaths will be quickly forgotten.

AFGHANI STANNow, it's up to you whether or not you want to just do the bare minimum. Well, like Mohammed, for example, has 37 pieces of flair. And a terrific smile.

PADILLAOk. Ok, you want me to wear more?

AFGHANI STANLook. Padilla.

PADILLAYeah.

AFGHANI STANPeople can get blown up anywhere, ok? They fear Al Qaeda because of the jihadi attitude. That's what the flair's about. It's about fun.

PADILLAOk. So, more then?

AFGHANI STANLook, we want you to praise Allah, ok? If you think the bare minimum is enough, then ok. But some people choose to wear more and we encourage that, ok? You do want to praise Allah, don't you?

But as a civilian he never took his show on the road outside of the US to anywhere other than the then simple and unobtrusive border crossing to Canada. Something about his manager "The Colonel" being an illegal alien, who was afraid that if he left the US he'd never be able to reenter.

Timothy McVeigh had a trial less than a year after he blew up the Murrah Federal Building.

The Brooklyn-born Padilla never "joined" as so many are saying...he only applied! And last time I checked, al Qaeda wasn't an army...but a stateless terrorist organization. But keep calling them a "military" organization, I'm sure they love it.

Henhouse - I merely observe that in what is or was a pretty open and shut criminal case got all tangled in part of the Patriot Act/Prez Powers that a carry with it a lot of well founded suspicion.

No, they wanted to try him as an unlawful combatant after being able to pick his brain about everything he knew about the terrorists he trained with in Afghanistan. They did not want the Jihadi lawyered up and in some jail with actual criminals. It worked. The traitor spilled his guts after a while and none of that was used in his "civilian" trials.

Ire said... Having spent 3.5 years subjecting Padilla to extreme sensory deprivation and other forms of torture, I think we should consider letting him and his lawyers pronounce his name any damn way he wants.

Awww, the poor traitor-victim!! The poor dear. Who ever dreamed being a terrorist and working to kill American infidels could ever be so rough on a soul!You're right. Now like the other traitor, John Walker Lindh, he can resume using his Islamic name now that the trial and use of his infidel name is no longer convenient. His real name is Abdullah al'Muhajir.

ZPS - It doesn't bother me that the report is biased because the gov should never have had the chance to mistreat him (a US Citizen) for the past 5 years.

The traitor is lucky he wasn't put in front of a military tribunal and shot the next day - a fate that American citizens found in Nazi, Imperial Japanese, and Italian uniform were subjected to.

ZPS They should have given him a trial from the beginning and maybe then the NYT (and I) wouldn't think the whole trial today is an exercise in futility.

Why was it futile? I know you Lefty terrorist-lovers are mighty upset your boy was convicted, but he spilled his guts and will spend all or much of the rest of his miserable life in SuperMax.

ZPS His constitutional rights were violated and, like it or not, that makes him a sympathetic character.

When you become an unlawful enemy combatant for the foe, SCOTUS ruled 9-0 that American citizens lose their Constitutional rights to Habeas (Ex Parte Quirin - 1942). The military and international law rule that unlawful enemy combatants get no Geneva protection.

As a traitor and a terrorist, I am not surprised that ZPS and other Lefties see Abdullah al'Muhajir as a sympathetic figure.

Steve - An American citizen is held for three years without access to a lawyer and without being able to communicate with his family

Abdullah/Victor was lucky he just wasn't hauled out and shot after a Tribual ruled and the interrogators were done squeezing all his AQ associates bios out of him.

And where does it say there is a "right" of a terrorist and traitor to communicate with family?

Better luck defending and enabling the next traitor terrorists, Steve.

At least I can respect a true enemy combatant from the Ummah who believes he is defending his lands and people against the infidel and his culture and past actions against Middle Easterners...One with US Citizenship is far worse and should get the worst treatment and harshest penalties possible.

This is why I don't bother to even fisk the NYTs anymore. Its a propaganda organ.

But I think Padilla is a misunderstood victim who's constitutional rights were grossly violated. In the name of Civil Liberties, he should be released and pardoned so he can go back to his work. Protecting the CONSTITUTION is worth the loss of New York City...

Cedarford: When you become an unlawful enemy combatant for the foe, SCOTUS ruled 9-0 that American citizens lose their Constitutional rights to Habeas (Ex Parte Quirin - 1942). The military and international law rule that unlawful enemy combatants get no Geneva protection.

That need to be repeated over and over again until it sinks in. There are consequences to becoming an unlawful combatant. But the Left wants to extend Geneva Conventions to the very people Geneva was designed to prevent. Whats the point of having a Law of War if you treat legal and illegal combatants the same?

ahhh Cedarford (alias).... take a deep breath...think carefully...what was the major difference between WW2 and this present "war". Just a hunch that something in the answer to that will have something to do with the supreme court decision you cite.

Fen said... There are consequences to becoming an unlawful combatant. (Designated by whom?) But the Left wants to extend Geneva Conventions to the very people Geneva was designed to prevent. (I have no idea what this sentence means) Whats (what's)the point of having a Law of War (ahhh the infamous war law) if you treat legal and illegal combatants the same? (oh brother)

I love it when the rightwing gets cornered in illogic. sooo satisfying

Depsite all the funny arguments that Padilla forfeited his rights when he "joined the enemy army," Padilla ended up being charged and had his trial anyway, minus the original allegations he was being held for, of course. So something made the Bush administration change their minds on this one (they had no standing?), and I doubt it was the New York Times.

It's also worth noting that criticism of the way the Padilla case was handled is not a defense of Padilla. I can only imagine how deranged the guy is. Viewing his denial of habeas corpus as unjust doesn't make me a "lefty terrorist lover" anymore than someone viewing his denial of habeas corpus as awesome makes him or her a "Crazy George Bush Lover."

When you become an unlawful enemy combatant for the foe, SCOTUS ruled 9-0 that American citizens lose their Constitutional rights to Habeas (Ex Parte Quirin - 1942). The military and international law rule that unlawful enemy combatants get no Geneva protection.

According to the case you cite, "Unlawful combatants ... are subject to trial and punishment by military tribunals..." As far as I can tell, there was no military tribunal for Padilla.

If he had been convicted by a military tribunal as an unlawful combatant, then he would have had no Constitutional right to Habeas Corpus, as you say. But since he was not convicted by a military tribunal, he did have a Constitutional right to Habeas Corpus, which was clearly violated.

"Wars, including this war, are fought under well-understood rules, and they don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when trying them. There is only one standard of treatment for any person, American or foreign, being held as an unlawful combatant. Those individuals are not entitled to the legal rights that we have come to hold so dear. Neither are they entitled to protection under the Geneva Convention."

"In December 2003, the United States Court of Appeals for the Second Circuit, in New York, ruled that the government lacked the authority to hold Padilla in military custody. The Second Circuit determined that Padilla's case differed from Hamdi's because Padilla was seized on American soil rather than in a combat zone. Therefore, the Court ruled, Padilla could not be detained as an "enemy combatant."

http://www.heritage.org/Research/NationalSecurity/hl834.cfm

I think the court made a mistake in assuming the US is "not a combat zone" [see: World Trade Center, 9-11]. This is not a conventional war, its asymetrical involving terrorist attacks against illegal targets. Yes, Padilla was captured in the US, he was planning to attack New York, and thus considered the US to be a "combat zone".

I'm willing to accept the jurors' conclusions. After all, they saw the evidence. I wonder, though, why you never saw reference to the fingerprints before. It was the basis of the prosecution's case, and was discussed extensively before even in, yes, the NY Times.

What I wonder is whether you all are ready to accept the jury's conclusion in the Scooter Libby case that Libby was guilty beyond a reasonable doubt of lying to a grand jury.

Fen: "But the Left wants to extend Geneva Conventions to the very people Geneva was designed to prevent."

hdhouse: I have no idea what this sentence means

One reason you have a Law of War is to afford protections and rights to those soldiers who abide by rules designed to limit unnecessary destruction of civilian targets. The idea is to prevent the deliberate targeting of civillians. But you want to give terrorists Geneva protections, regardless of whether they abide by the Laws of War. In doing so, you undermine the basic purpose of Geneva. Again, why have a law of war if you don't distinguish between accepted & unaccepted means of warfare?

hdhouse writes:ahhh Cedarford (alias).... take a deep breath...think carefully...what was the major difference between WW2 and this present "war". Just a hunch that something in the answer to that will have something to do with the supreme court decision you cite.

hdhouse cleverly doesn't state what he thinks the difference is -- thus giving him plausible deniability. In any event, it's likely I think he's talking about that famous leftist bugaboo, the supposed lack of a declaration of war in this "war on terrorism" (Islamist jihadism).

Indeed, let's see what that well-known right-wing fanatic Joe Biden -- then Chairman of the Senate Foreign Relations Committee and author of the Congressional "Use of Force" resolution with regard to that very same war -- had to say about it in response to a question from the audience following a speech delivered on October 22, 2001: http://biden.senate.gov/newsroom/details.cfm?id=229598&&

"Question: My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom?"

"Biden: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President."

UCLA Prof. Eugene Volokh has also written extensively on this subject. See some of these links for instance:

I haven't heard it mentioned but it seems to me that the Civil War would have more to contribute. Not in terms of those on the Union side but the Confederates. The US position was they didn't have the right to separate. But the Confederate soldiers both fought against the US and were not given, as far as I understand, Constitutional rights. They were prisoners of war if captured, not subject to trial.

Why wouldn't Padilla fit into that category? Like a Confederate soldier captured at Gettysburg. The Confederacy was not recognized as a legitimate government. But the citizens who rebelled were not treated as US citizens either.

puh-DEE-yuh is the correct multi-culturally sensitive kewl kids pronunciation. Only mono-linguistic rubes in flyover territory would pronounce it the way it looks in English, and don't you forget it. What a hoot if the guy himself pronounces it puh-DILL-uh. I speak as someone who could never find La Hoya in the basketball news.

Justin - According to the case you cite, "Unlawful combatants ... are subject to trial and punishment by military tribunals..." As far as I can tell, there was no military tribunal for Padilla.

If he had been convicted by a military tribunal as an unlawful combatant, then he would have had no Constitutional right to Habeas Corpus, as you say. But since he was not convicted by a military tribunal, he did have a Constitutional right to Habeas Corpus, which was clearly violated.

Justin, you are using circular logic to press your case that because Padilla was tried by a civilian jury instead of a military tribunal, that somehow proves he was never an unlawful combatant in the 1st place and Ex Parte Quirin was magically overturned. Ergo, he was therefore never a enemy agent out to kill American infidels - just a common criminal with all due process rights.

That is not the case. The 2nd Circuit Court declaring America was not a place AQ conducted combat ops was ridiculous, but deference to lawyers dressed in robes intruding into military law and an international conflict threw a huge wrench into plans to prosecute the Jihadi combatants under a military system.

Add that by early 2004, the failures of the Bushies and Patriot Act hysteria was in full blossom with the Democrats, the Hard Left, Jewish Transnational Progressives, the Euroweenies mobilized against the "illegal invasion" - and anything Bush wanted regarding prosecuting AQ wasthwarted in the institutions the Left still had considerable influence with - the Courts, the media, the law schools.

The Bushies didn't help matters with their total legal incoherence on what venue they would use. They had Ashcroft insisting on a civilian trial for Moussauoi, they elected to try Johnny Taliban in civilian court simultaneously with declaring Hamdi and Padilla and the Lefts beloved Gitmo Boys "unlawful combatants".

Hundreds of lawsuits were initiated to protect the poor dears at Gitmo and it took years to move jurisdictional disputes through the courts.

Finally the Bush people just said "fuck it", and moved Padilla into a criminal court and dispose of him that way...

Padilla was the beneficiary of the terrorist's rights movement of the Left, the venom over Iraq spilling into all Bush's post 9/11 initiatives, and the Bushies rank incompetence and incoherence..

But Ex Parte Quirin still stands. In the eyes of the law, unlawful enemy combatants, US citizens or not, have no right to Habeas Corpus in US civilian courts.

One of the left-wing blogs reported on this yesterday. Actually, one of the best in terms of adherence to facts. But their comment community is indistinguishable from Kos. Oh, the keening and wailing about how Padilla was treated so unjustly. It seemed almost absurd.

But reading the NYT report, you can hardly blame them. They make Padilla out to be the victim of a dastardly scheme to turn an innocent man into a scapegoat for terrorism.

Generally, I slough off the NYT when its biases show. But those comments make you realize that the paper's ordering of paragraphs and omission of facts it finds unhelpful to its narrative establishes a world view for millions of people not conditioned to question "the paper of record."

Paddy O - But the Confederate soldiers both fought against the US and were not given, as far as I understand, Constitutional rights. They were prisoners of war if captured, not subject to trial.

Why wouldn't Padilla fit into that category?

Confederates that fought in organized ranks and in their States uniform were treated as POWs.Padilla wouldn't fit in that category.He is more akin to the Confederate unlawful combatants - spies, saboteurs, supply line attackers, agents that operated behind Union lines out of uniform.

When those type of US citizens were caught, they were executed by being shot, bayoneted, or hanged on officer's orders immediately --or after military tribunals if the US citizens were to be beaten and interrogated since they lost protection in Union officer's eyes as honorable soldiers. (following the pattern of the Napoleonic Wars_

The most famous case was the mix of Confederate Army officers and civilian Agents that enacted the Lincoln Plot, which was actually an attempt to decapitate the Union government and effect a more sympathetic to the Confederates change in leadership.

Lincoln, Stanton, Seward, and Johnson were supposed to be killed. Only Lincoln was assassinated. The consequences was the famous military tribunal and the mass hanging of the conspirators.

If Padilla was a Confederate, his fate would have been harsh interrogation and then either a bayonet or a haul-up by Union troops into a tree for a slow hanging that took 10-20 minutes to die from. He likely would have been judged as low-class, thug, non-officer and not have qualified for a quick death by bullet.

Leaving aside torture allegations, the Padilla case has been the only one that really bothers me. Not becuase I think he is innocent -- I don't. From what I see, the evidence was strong that he was up to no good. Rather, the fact that he was a US citizen caught inside the US (though at an airport to be sure) in the ordinary course by law enforcement. He was not captured on some distant battlefield carrying a gun. And for 3 1/2 years, he has been treated such that his mental capacity is in question. His conviction might be overturned on that alone.

Justin, you are using circular logic to press your case that because Padilla was tried by a civilian jury instead of a military tribunal, that somehow proves he was never an unlawful combatant in the 1st place and Ex Parte Quirin was magically overturned. Ergo, he was therefore never a enemy agent out to kill American infidels - just a common criminal with all due process rights.

No. I am neither using circular logic or pressing a case that Padilla was never an unlawful combatant and that Ex Parte Quirin was overturned. And I never said, implied, or even thought that he wasn't an enemy agent out to kill Americans. Where did you get all of that?

What I'm saying is that, according to Ex Parte Quirin, an unlawful combatant is subject to "trial and punishment by a military tribunal". There was no military tribunal, therefore Padilla's status as an unlawful combatant was never proven. Since he was a US citizen at the time of his arrest, he was entitled to the rights guaranteed by the Constitution until he is proven to be an unlawful combatant.

I am not a lawyer, so my analysis may be a bit off. But it seems fairly straightforward to me.

In the eyes of the law, unlawful enemy combatants, US citizens or not, have no right to Habeas Corpus in US civilian courts.

I never said otherwise. But my whole point is that he was never proven to be an unlawful combatant. You can't just wave your hands and say "Jose Padilla is an unlawful combatant!" and make it so. There is a legal process, even in military tribunals.

Actually, this post is creepy -- Prof. Althouse is straining like made to show proof of wicked MSM bias over article's use of the word "sway" over "convinced," while maintaining a smirky attitude over a case whose record any legal professional would find appalling.

But that's lost in the reflexive "MSM" hate for the article implying that, just maybe, this case wasn't exactly handled by the book.

Confederates that fought in organized ranks and in their States uniform were treated as POWs.Padilla wouldn't fit in that category.He is more akin to the Confederate unlawful combatants - spies, saboteurs, supply line attackers, agents that operated behind Union lines out of uniform.

Which even sharpens the point. How is Padilla different than a Confederate soldier out of uniform? I've heard discussion about Lincoln's suspension of Habeas Corpus for suspected Confederate sympathizers who hadn't joined the Confederacy but I haven't heard any comparison to Confederate loyalists captured. Was there any Constitutional questions during the Civil War about Confederate soldiers/spies? The US position was that the Confederacy was not a separate country, so conceivably the argument could be made that all Confederates were still under the US Constitution.

That he was on US soil doesn't seem to make a lick of difference if seen with the example of the Confederacy in mind. I dare say the Constitution survived by not honoring Confederate soldiers Constitutional rights.

How is this case different? Were there discussions or attempts then to play this the way Padilla has played it?

But the Confederate soldiers both fought against the US and were not given, as far as I understand, Constitutional rights. They were prisoners of war if captured, not subject to trial.

Why wouldn't Padilla fit into that category?

He wasn't in uniform. Also, the Constitution says that Habeas Corpus is suspended in case of rebellion.

Neiethr was Mr Milligan. I am no consitutional schiolar, and it has been a long time since Con Law, but didn't Milligan hold that habeus corpus may only be suspended if the civilian courts are not in operation?

for the purpose of argument, let's assume Mr. Padilla signed up with the intent of joining this group. (i'm sure his defense attorney asked someone if he was handed his "application" to examine at Gitmo or whereever) and it seems mighty odd that 7 (not 6) fingerprints were found on the front and back but none on the inside....another time another place for all that..

We may all hate him, loathe him, want to spit in his eye. However, he is an citizen. The civil war doesn't apply as the Union never ever considered the south to be other than rebels..for to give them status as foreign combatants would have legitimized the south as a nation...something Lincoln took great pains to NOT DO.

We had a number of US citizens who trained as Bund members prior to WW2 here on Long Island and a fairly substantial number who enlisted in the German Army prior to our involvement. How were they treated?

I keep to my central question. Say a US citizen enlisted in the PLO. In the course of his duties he got into a fire fight with...accidently or not...US military somewhere. He was captured. What is he? He enlisted prior to any hostilities, declared or not, and although he might have been part of a group who had evil thoughts, spoken or not, against the US, the US had no declaration of war or for that matter anything other than potential criminal prosecutions of some of the leaders...acts which he had nothing to do with.

So what is he? besides and american citizen participating in potentially criminal acts...

I don't consider a traitor an American citizen and I sure as hell have no sympathy for him. He is a muslim would be terrorist or jihadi--he gave up his right to be called an American citizen when he chose to go to Afghanistan to become a jihadist. He can rot in hell for all I care. The lefiies will likely be sporting padilla shirts soon--make him their new poster boy--Che padilla. Sick!

This sounded odd: "'Swayed?' How about convinced? Do the citizens who served on the jury in a 3-month trial deserve the dispargement implicit in the word 'swayed'?"

The instructions undoubtedly told the jury to consider and weigh all of the evidence. When separately considering the significance of any particular piece of evidence, it's become commonplace (at least I think it has) to talk about the impact (or lack thereof) of that bit of evidence using the word "swayed." It's true that the standard jury instructions tell the jury not to be "swayed" by obviously irrelevant considerations, and that use has about it an element of "implicit disparagement" (don't be swayed by irrelevancies; instead reach your verdict by being convinced based on the evidence). But that's reading a lot into language that's become so ritualized no one really thinks about it anymore. Instead, I think Ann is overstating it a bit in saying that word "swayed" connotes "implicit disparagement."

I see that the SCOTUS has used it in that way, without any suggestion of disparagement. In Williams v. Taylor, 529 US 362, 419 (2000), a death penalty case, Rehnquist wrote (in an opinion in which Scalia and Thomas joined): "It was not, therefore, unreasonable for the Virginia Supreme Court to decide that a jury would not have been swayed by evidence demonstrating that petitioner had a terrible childhood and a low IQ." His point wasn't that the excluded evidence was irrelevant but that the jury wouldn't have found it convincing.

On the use of "swayed" in this context and whether it carries with it a wiff of disparagement, I think Rehnquist has the better of it.

the evidence, which appears to be this application form, appears extraordinarily weak.

it doesn't contain his name, al-queda, or any statement of hostility to the united states or even the west.

its provenance is also outlandish -- allegedly delivered by pickup truck by an unknown person to an unidentified CIA agent for unknown reasons.

it does contain his fingerprints, yes, on some of the pages. given that he was unlawfully detained for years while sensorily deprived, i find it possible that he handled the document at that time (in other words, i dont put it past the evidence-hungry administration). i dont see any chain of evidence that could establish, for example, that the document was held at a secure facility and was never made available to him during his detention.

why unlawfully detained? he wasn't permitted access to counsel and he was treated cruelly and unusually through extreme sensory deprivation (think what happened to the secretary of defense's son on 24 (goggled and headphoned) times 3 years).

even if he did fill out the document, all that proves to me is...that he filled out the document. an application form. lest this is confusing to some of you, you cannot unilaterally create an agreement. there is no acceptance form, there is no congratulatory letter. in short, there is no evidence, from what the article presents, that he actually joined anything.

interesting that this extraordinary paucity of evidence, after the hoopla over his arrest and detention, doesn't excite anyone here.

for those who feel (incorrectly) that he forfeited his constitutional rights as a citizen, i don't see the treason charge here. please point me to it.

Even if Padilla was at an al-Qaeda training camp, he was there because Karl Rove exerted his mind control powers to force him to go so that he could be a scapegoat for the administration's desire to enrich Haliburton and deny global warming. Now, by framing Padilla, Bush can continue tax cuts for the rich, defying Kyoto, listening in to all of our phone coversations, and distract everyone from the fact that he and Israel were behind 9/11.

As I said, I think considering the circumstances of his capture, Padilla should have been tried sooner and in civilian court. As for US citizens who are caught engaging in hostilities against the US, I think that is not the correct situation here.

In any event, we have such a case, involving Johny Walker Lindh. In my passport (which is of the old pre-biometric variety) there is a warning about dual citizenship, in particular the issue of military service.

One reason US citizens are discouraged from enlisting in foreign militaries is that the US might find itself at war with that country later on. Treason is the only crime defined in the Constitution as is defined as follows:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

Furthermore, Mr. Lindh and otehrs who might be captured in places like Afghanistan should be happy that they live today and not in an earlier age. Look at the sad case of the San Patricios -- they were mostly hung, the order given when the US flag rose over Mexico City. Alternatively, in an earlier age, the situation might have been resolved by a battlefield execution -- Lindh instead will get 20 years.

There was no treason charge -- he was charged and found guilty of other things. And from what I understand, the evidence went far beyond the application, the media has seized on that as it is, well, funny.

My feeling remains that he should have been charged 3 eyars ago in a civilian court, it should not have waited this long and the administration should not have gone through the machinations of claiming he was a combatant considering the circumstances of his capture.

At this point, based on the scare tactics via the Bush administration, Americans are terrified of looking un-American or soft on terrorism, whether it's real or imagined. We've held over 600 people at Gitmo, yet have less than 10 actual convictions for any form of terrorism.

The attack on 9/11 has allowed Osama and his ilk to turn our country upside down and inside out.

In 6 short years Americans now allow the U.S. government to use satellites to spy on their daily activities, wiretap their telephone calls, hold people in secret prisons without even being charged with a crime, no attorneys, no habeas corpus...nothing but innuendo and charges to which they do not have to provide details.

And we allow this, all in the name of our War On Terror...yet, as everyone knows (but few will admit)...terrorism is much more prevalent today than ever before, we've lost 3,700 soldiers, have another 27,000 wounded and no one knows how long the fiasco in Iraq will continue.

I never thought I'd see the day Americans would show such a lack of backbone and find it thoroughly disgusting.

Uh, this is not entirely related, but the pronounciation of his name is not "Puh-DEE-yah". That would suggest that his name is spelled "Pudilla". Duh. The correct pronounciation would be "Pah-DEE-yah", cause you know, that's an "a" there and not a "u". With a lawyer like that, no wonder the guy was stuck in a brig for three years and then convicted in 1 hour.

I agree with Luckyoldson. We should free padeeah, give him a truckload of radioactive waste from dental offices and such, a ton of diesel an some hi nitrate fertizer and say "As you were sir! America apologises!"

Really, if only there were a way to get these liberals heard by more people.

Oh yeah, and we should all agree to be conveniently imprecise with out terminology. For instances, we should only say "Wiretapping on Americans" no matter what the facts of the matter are. We should make charges of torture as if they were proven or as if our redefinition of the term has come into general acceptance.

I could go on, but I love relating the kinds of comments people make on these blogs to people in the diner in the morning, as I am having my eggs, they just shake their heads in disbelief.

Washington, Jefferson, Adams, Franklin and the rest of the brave souls who founded this country are spinning in their graves.

*Just minutes ago I heard another report on how Mueller of the FBI completely contradicts Gonzales regarding the clandestine visit to then Ashcroft's hospital room, further indicating that the man was in no shape whatsoever to be discussing important matters of national security...yet Gonzales is still the AG...and Bush tells the world that he supports him to the hilt.

My feeling is that he should have been waterboarded until he gave up all he had, and then hung.

To be truthful Fen, while I think he was guilty, I do not think he had that much to give up. My feelings though are colored by the fact that he was captured by law enforcement inside the US, not on a foreign battlefield carrying a weapon.

And I really do not understand the sympathy that people have for folks like Padilla or Lindh. As an Italian kid from New York, it reminds me of the mafia guys who eventually get convicted. They whine and complain that the feds got them on silly crimes, and you just want to yell out -- "but weren't you in the Mafia?"

Ultimately, these guys got connected with terrorist organizations. They may have slipped in and quite realizied what they were doing until they were deep in. Or they may have been so clueless that they did not realize what was up. But when all was said and done, they were still in a terrorist organization that claims to be at war with the US (and long before Bush was president).

then you are the traitor here. you are a traitor to the constitution of the United States. You obviously disavow it, don't support it, want to work in sanctioned lawbreaking. You are a traitor if your intent is to subvert that document.

The fundamental problem with this whole 'war of terror' is that neither our current civil or military laws really cover the type of enemy we are dealing with. Liberals decry Padilla's treatment, with some justification, since as an American citizen being held without charge or trial for years on end even bothers my cold-conservative black coal of a heart. That said, I also don't think you can treat Islamic terrorists in the same manner as some mob boss from Jersey.

The mob boss is breaking laws trying to make a buck where the Islamo-fascist is breaking laws to kill innocent people to achieve a political goal. One is essentially a local issue, the latter is one of national security. Having open civilian trials for terrorists with international connections would obviously have a chilling effect to say the least in having witnesses coming forward not to mention putting covert operatives at risk. If we're going to insist on OJ style trials for every captured terrorists/unlawful combatant, we may as well thrown in the towel and tell Osama we're adopting sharia law tomorrow.

Geneva does not apply to Padilla, Lindh or any of the others captured over the course of the war. Read the terms of what defines a lawful combatant and unless you are completely obtuse, you will see NONE apply to them. Now back in the day of Cap'n Jack Sparrow, they were hung out of hand but as that offends to many sensibilities, it is obvious that some change in the current system has to be made which will make both sides happy.

On a different note, I will never understand how so many on the left who tremble in obvious terror at so much government overreach and scoffing of the Constitution still insist that private gun ownership be banned. LOS, hdhouse, Alpha, just take note, the government has all the means of self-defense, then it's time to really get worried.

I rarely read Althouse and I've never posted here before. I'm compelled, however, to comment on this particular blog entry.

Kudos to Ann for drawing an amazing display of left-wing straw-grasping pro-terrorist comments from the MoonBat commune. It's akin to how my noodle-brained cat reacts every morning when I bring her a moth caught beneath the porch lights.

Mary / House:You're wasting your time trying to discuss anything here. 95% of the people here are so far to the right, they just don't want to hear anything they don't already believe.

Fen still believe there were WMD in Iraq (even though Bush doesn't), Pogo follows Fen's lead (nose firmly planted), Sloan sounds like a spoiled twelve year old and of course you've got the I-Love-Annie crowd of Rev, Hoosier, Theodore and company, hanging on her every word.

But I have to admit, it is fun to provide actual "facts" and watch them scatter like cockroaches.

Most are so uninformed and biased in their opinions it drives them up a wall when a contrary comment, opinion or theory is presented.

*Oh, and never forget: If you don't support Bush's policies...you're not a REAL American.

Mary, can I ask a question. Do you believe that liberal democracy is a universal value. Not whether that was the reason, just whether it is a universal value. For my real anger about Iraq and how it has been screwed up is that now, the "realist" view of foriegn policy is in vague. I view the realist view as how we got here in the first place.

That is not to say that we should run off on fool crusades all the time, but that we should be pushing countries to liberalize, especially those wioth whom we have influence. Yet, for the Left, the big heroes these days are Fidel Castro and Hugo Chavez, who are fasicst thugs who simply have the good sense to have their followers shout "Death to America" once a month or so.

If you could wave a magic wand, would you want the entire Middle East to be run by liberal democratic governments?

My feelings though are colored by the fact that he was captured by law enforcement inside the US, not on a foreign battlefield carrying a weapon.

He was captured on US soil while plotting to attack an American city with a WMD. I don't disagree with your other points, but lets not minimize his intent - its not like he was simply denouncing the US government at a CAIR or ANSWER rally.

He was not captured on a foreign battlefield carrying a weapon, he was captured on US soil while plotting the mass slaughter of innocent civilians.

And Mary, Hdhouse, Lucky - people like you are the reason no one takes the Left seriously re national security. Thank you for your efforts.

No, but I question how thorough the weapon inspectors could have been, when they missed 500 arty shells with chemical WMD. How can you claim there were "no WMDs in Iraq" after missing 500 degraded WMDs?

Besides that, your argument is a Strawman - we did not go into Iraq to "find WMDs", we went in to stop his WMD programs. You claim sanctions were working and had Saddam "boxed in", but you deliberately ignore the fact that he farmed out a chemical WMD program to Sudan, and a nuclear WMD program to Libya.

Fen -- I understand he was not here to attend an ANSWER rally. I think he is guilty. And while some argue it was circumstantial, most evidence is -- when circumstances make you run in a jihadist circle, eventually the circumstances add up.

My problem is that it took 3 1/2 years to bring to trial someone who was captured by law enforcement, not by the military. The government spend 3 years claiming he was an enemy combatant, when he should have been tried in the regular criminal courts immediately. The idea that he was subject to a military tribunal seems wrong to me. That is what I am saying.

Mary-troll: Yeah, and I bet we're not losing every day in pogo and fen's world either. La-la-la ... a pretty fantasy life for me!

Yes, its your fantasy life. We are winning, so don't choke on your talking points. We deposed, tried, and executed Saddam, we've had three representative elections, we have a new constitution, and the surge is working. So what's a bitter old hag's definition of "failure"? Another 12 years of feckless UN resolutions championed by bribed diplomats?

Even anti-war Democrats are checking in to THIS reality:

"Another Congressional Democrat has shifted his views on Iraq to support from opposition -- and this change has significance. Rep. Brian Baird, one of the Democrats who voted against the authorization to use military force in 2002, has now returned from Iraq convinced that we need to give General David Petraeus more time. . . . Baird made it plain that his change of heart is based on two very clear criteria. One, a pullback would devastate Iraq and be catastrophic to the region and our national interests. Primarily, though, Baird believes that Petraeus has made real progress. He does not want to pull out while success can still be achieved."

http://www.captainsquartersblog.com/mt/archives/011581.php

And public support is increasing, depsite the Leftist propaganda organs [like NYTs above]:

"47 percent of Americans now think we’re making progress in Iraq, despite the best effort by our major news media organizations to ignore this, to bury it, to cast it in the worst possible light."

http://www.julescrittenden.com/2007/08/17/poll-americans-want-to-win/

I hope you choke on your bile Mary. I think its already rotted away inside you. It would explain much about you.

You asked before about Bund members. While not a Bund member, Herbert Haupt was a naturalized US citizen who came here as a boy. In 1941 he left the US and by a round about route endedup in Germany, where he was recruited by the Abwehr. He was sent back to the US but quickly captured. A military commission sentenced him to death.

"Yeah, and I bet we're not losing every day in pogo and fen's world either."Losing what? The Taliban spring offensive was stillborn. Al Qaeda is surrendering territory in Iraq. And US territory has has not been attacked since Sept of 2001. What's lost? Your mind? Soul?

FenI've been in sales 15 years and it seems like I never get an easy gullible sucker like you. You do realize they knew Iraq was lost, and they never again could say "we're winning", or "we're turning the corner" without getting pelted with tomatoes -- so they just gave it a new name? A new war if you will.

By the way, I have alot of computers you need, give me a call we need to talk. ;)

Mary: the truth is most all of them were better under Saddam's regime than what they've got now, even the minority... We have to suck it up and accept that some places do things differently than us, that there is no mono-culture in our shared world. Killing them in the name of a more civilized world is the biggest farce every perpetuated

"There is some justice in one charge that is frequently leveled against the United States, and more generally against the West: Middle Easterners frequently complain that the West judges them by different and lower standards than it does Europeans and Americans, both in what is expected of them and what they may expect, in terms of their economic well-being and their political freedom. They assert that Western spokesmen repeatedly overlook or even defend actions and support rulers that they would not tolerate in their own countries.

...there is nevertheless a widespread [Western] perception that there are significant differences between the advanced Western world and the rest, notably the peoples of Islam, and that these latter are in some ways different, with the tacit assumption that they are inferior. The most flagrant violations of civil rights, political freedom, and even human decency are disregarded or glossed over, and crimes against humanity, which in a European or American country would evoke a storm of outrage, are seen as normal and even acceptable.

...The underlying assumption in all this is that these people are incapable of running a democratic society and have neither concern nor capacity for human decency."

- The Crisis of Islam, Bernard Lewis, p104

Mr Lewis was talking about bigotry. He was talking about people like you, Mary.

My feeling remains that he should have been charged 3 eyars ago in a civilian court, it should not have waited this long and the administration should not have gone through the machinations of claiming he was a combatant considering the circumstances of his capture.

Meaning a combatant guised as a "civilian" arrested by civilians automatically deserves to be in civilian courts?

That is like saying a US Marine who kills a family in Utah in a botched robbery is arrested by Military POlice cannot be turned over for civilian trial since the perp and the srrestors are on "the same team".

In fact, who the aresting powers are and the military/non-military status of the perp are largely irrelevant.What matters is who has legal jurisdiction.

Anthony - My problem is that it took 3 1/2 years to bring to trial someone who was captured by law enforcement, not by the military.

No doubt you have similar problems with German police that captured downed US pilots in WWII not trying them as criminals in civilian court rather than the German cops turing the soldiers over to POW camps. After all, it was Civilians that got the pilot-soldiers, and by your thinking had jurisdiction.

The other side of that, Anthony. is saying that civilians that do crimes, vs. act as unlawful combantants and enemy agents - all fall under military justice if their crimes are committed on a military base or in a war zone...

Naked: You do realize they knew Iraq was lost... so they just gave it a new name? A new war if you will.

Are you trying to speak about the surge? Do you have even the most basic understanding of what it is, how its tactics are different, how many towns and provinces it has cleared? Its just ironic to have you lecture me about being "gullable" while you demonstrate such ignorance.

Mary: I don't judge them to any standard, fen, bold type or otherwise.

Sure you do. You said:

"the truth is most all of them were better under Saddam's regime than what they've got now, even the minority... We have to suck it up and accept that some places do things differently than us, that there is no mono-culture in our shared world. Killing them in the name of a more civilized world is the biggest farce every perpetuated."

I can't wait to hear what justifications you provide when Iran is bombed because they are not evolving fast enough to meet our standards....Defense is one thing, but regime change for its own sake is another...I wouldn't expect you to have the mental capacity of distinguish between the two.

Iran won't be bombed because they're not evolving, they'll be bombed because we can't allow a theocratic rogue-state stuck in the 4th century to have access to WMDs. When would you act? After Tel Aviv is in ashes? Paris? New York?

Mary: Please quit squawking until the job is completed

No. Its certainly not a standard your side has abided by - the Left was declaring Iraq a quamire before we even went in. Of course, NOW that we're seeing sucess on the battlefield, you want everyone to be quiet and reserve judgement. Typical leftist hypocricy.

The surge is working, deal with it. Or stick your head back in the sand, I don't care. Either way, we won't forget the treachery of the hard left - hoping for disaster in order get political traction and power. Your kind is disgusting.

Ire said: "Having spent 3.5 years subjecting Padilla to extreme sensory deprivation and other forms of torture, I think we should consider letting him and his lawyers pronounce his name any damn way he wants."

Fen said... "He was captured on US soil while plotting to attack an American city with a WMD."

Ok Fen...I'll bite....

plotting with whom?attacking a bridge or an American City that has a bridge?with a WMD?

So who was he plotting with and wasn't he checking out a bridge and decided that it was far to risky if not impossible and what were these WMDs? Did he have one? Did he have a wing and a prayer of getting one?

Was he charged for these acts or where his charges something else?

and you wonder why the right wing in this country has no credibility....lol.

one woman, contacted by phone, said -- in the words of the NYT -- "that she had all but made up her mind before deliberations began."

And yet, could not have been persuaded if she had heard exculpatory evidence? Yet more contempt for the intelligence of ordinary people.

Of all the oddly phrased lines in the NYT article, this was the one that bugged me the most -- and you seem to have fallen for their intended confusion.

It would be bad if a juror had shown up at the beginning of the TRIAL with her mind "all but made up". However, it is absolutely expected, ordinary, and commendable that her mind was "all but made up" before DELIBERATIONS.

She means that at the end of a three-month long trial, hearing all of the evidence in the case, and all of the arguments from both sides, she believed that Padilla was guilty -- before the jury began to DELIBERATE in the jury room for the "little more than a day" it took them to vote to convict.

You are twisting my words somewhat. The case you siuggest, US fliers, in uniform, captured by German police is different from the situation of Mr. Padilla. Padilla was in civilian clothes, a US citizen, captured by US law enforcement.

If someone is captured on a distant battlefield, I have no problem with a military commission determining wheher or not they were illegal combatants.

I just believe that Mr Padilla's case was poorly handled by the administration and that could really hurt efforts to fight terrorism.

I don't care if he was in civilian clothes or in a burka--your apparel does not determine whether you are a jihadi or not. The 911 gutter beatles were wearing civilian clothes, too. Should we have waited for Padilla to kill some innocents before convicting him for planning to kill them?In case the terrorist lover is still reading,("the truth is most all of them were better under Saddam's regime than what they've got now, even the minority... We have to suck it up and accept that some places do things differently than us, that there is no mono-culture in our shared world.) here is a list of Saddam's good deeds to his people:The following, according to the State Department report, were routine in Iraq during Saddam Hussein's rule:

• Medical experimentation

• Beatings

• Crucifixion

• Hammering nails into the fingers and hands

• Amputating sex organs or breasts with an electric carving knife

• Spraying insecticides into a victim's eyes

• Branding with a hot iron

• Committing rape while the victim's spouse is forced to watch

• Pouring boiling water into the victim's rectum

• Nailing the tongue to a wooden board

• Extracting teeth with pliers

• Using bees and scorpions to sting naked children in front of their parents

BUT I guess We have to suck it up and accept that some places do things differently than us, according to Mary. We need to learn to respect barbarity, beheading, and all the crap sanctioned by these moonbats.

Anyway, why do you think that you can "sway" us with facts? With logic?

You, and that woman juror, obviously a member of the VRWC, who had her mind all but made up after listening to the facts & a judge’s charge, that is, without reading the NYT’s explanation of the deeper meaning of what she’d heard, are enabling enemies of the U.S. Constitution to stay in power.

Not only that, but doesn’t it shock your conscience that you are countenancing the Inquisition, the Star Chamber, the Salem Witch Trials, the Scottsboro Boys, Lynching in the South, Atty. Gen. Palmer, Joe McCarthy, Abu Ghraib, Abu Ben Adam, wait, I didn’t mean that, Gitmo, & Karl Rove, not to mention Judge Judy when she disses all those poor people who appear before her?

And don’t forget a Bill of Attainder here: There was no law in existence, none that said specifically that Pedilla couldn’t put his fingerprints on a document without the DOJ getting bent out of shape.

Well, naturally I can only cover these things roughly from memory but if I’ve left anything out, why you just ask me specific questions and I’ll tackle them one by one, but I believe I’ve hit the main points.

C-fudd blames "Jewish transnational progressives" for opposing the Iraq war, while (elsewhere) he blames them for instigating it. I guess this is the intellectual equivalent of the physical impossibility (but maybe not in Fudd's case) of having your head lodged deep inside your rectum.

Of course Fudd gives the game away when he says "... I can respect a true enemy combatant from the Ummah who believes he is defending his lands and people..." If Padilla had gone after some Jews, Fudd would be screaming bloody murder about his constitutional rights, like Buchanan defending Nazi war criminals.

Fen said..."We are winning, so don't choke on your talking points. We deposed, tried, and executed Saddam, we've had three representative elections, we have a new constitution, and the surge is working."